Improper use of national security letters should be curbed by Congress

March 11, 2008

Freedom New Mexico

FBI Director Robert S. Mueller has confirmed in a Senate hearing that a forthcoming report from the Justice Department’s inspector general will find that abuses by FBI agents in the use of a tool called national security letters (NSLs) occurred in 2006. This comes even after abuses had been documented from 2003-05, and congressional committees had urged the FBI to eliminate them.

He emphasized, however, that the 2006 abuse “predates the reforms we now have in place.”

We would like to believe that Mueller (who has been, on balance, a better FBI director than we expected) is correct, that administrative procedures really have reduced such privacy abuses substantially. But the record is not encouraging.

National security letters are administrative subpoenas, allowed under the so-called Patriot Act, that do not require a signature from a judge that demand information from banks, credit card companies and other institutions without a warrant as part of investigations into suspected terrorists and espionage.

A year ago Inspector General Glenn Fine reported that FBI agents used them improperly to obtain telephone logs, banking records and the like on thousands of Americans from 2003 to 2005. An internal FBI audit also found that the bureau probably violated laws or internal FBI rules more than 1,000 times in such cases.

While internal discipline and reprimands may have been issued, no agents have been prosecuted for these “potential” violations of the law.

For law-abiding Americans whose records have been improperly accessed, or whose banks or credit card companies know that the feds are snooping around in one’s records, the effects can range from embarrassing to devastating.

The tool is hardly used in only rare instances. From 2003-05 the FBI issued more than 150,000 NSLs. The new report is expected to show a similar rate of usage — and similar levels of abuse — in 2006. But Director Mueller says new procedures instituted in early 2007 should curb abuses, though it’s too early yet to judge their effectiveness.

We doubt if that will be good enough. Unfortunately, when human beings are granted great power, some of them will abuse it. Internal audits and reports from the larger department’s inspector general can be somewhat helpful, but such “in-house” controls are not sufficient in our constitutional scheme.

The founders created separate branches of government — legislative, judicial, executive — in part with the idea that these branches would keep an eye on one another in the interests of liberty. Keeping it all in one branch defeats the founders’ intent.

Congress would do well to revisit the Patriot Act and either substantially narrow the authority to issue NSLs or institute judicial oversight — or both. Even that would not provide an absolute guarantee against abuse, but at least somebody with an institutional incentive to curb abuses would be looking over the shoulders of people tempted to abuse their power.